CBS reports that the Justice department has submitted a subpoena request to Indymedia.us demanding the site turn over all reader visit details on June 25, 2008. Furthermore, the Justice Department had demanded that the site do so without even disclosing the existence of the subpoena. Without even bringing up the question of just how far into the "1984" rabbit hole our society has gone based on this development, this situation raises numerous questions about the anonymity of not only Internet browsing (at least that based in the US), but the transacting in visitor records behind the scenes. If this one case has made it to the public, one wonders how many other comparable gag order-cum-subpoeans the Justice Department has sent out to other websites?
Just who is this Indymedia? According to CBS it is a left-of-center amalgamation of journalists and advocates that – according to their principles of unity and mission statement – work toward "promoting social and economic justice" and "social change."
"I didn't think anything we were doing was worthy of any (federal) attention," [Kristina Clair, a 34-year old Linux administrator living in Philadelphia who provides free server space for Indymedia.us] said in a telephone interview with CBSNews.com
on Monday. After talking to other Indymedia volunteers, Clair ended up
calling the Electronic Frontier Foundation in San Francisco, which
represented her at no cost.
Under long-standing Justice Department guidelines,
subpoenas to members of the news media are supposed to receive special
treatment. One portion of the guidelines, for instance, says that "no
subpoena may be issued to any member of the news media" without "the
express authorization of the attorney general" – that would be current
attorney general Eric Holder – and subpoenas should be "directed at material information regarding a limited subject matter."
And the following odd development:
Lucy Dalglish, the executive director of the Reporters Committee for Freedom of The Press,
said a gag order to a news organization wouldn't stand up in court: "If
you get a subpoena and you're a journalist, they can't gag you."
Dalglish said that a subpoena being issued and withdrawn is not
unprecedented. "I have seen any number of these things withdrawn when
counsel for someone who is claiming a reporter's privilege says, 'Can
you tell me the date you got approval from the attorney general's
office'... I'm willing to chalk this up to bad lawyering on the part of
the DOJ, or just not thinking."
Making this investigation more mysterious is that Indymedia.us is
an aggregation site, meaning articles that appear on it were published
somewhere else first, and there's no hint about what sparked the
criminal probe. Clair, the system administrator, says that no IP
(Internet Protocol) addresses are recorded for Indymedia.us, and non-IP
address logs are kept for a few weeks and then discarded.
And this is where the story gets a little surreal, courtesy of an update from CBS:
A Justice Department official familiar with this subpoena just told me
that the attorney general's office never saw it and that it had not
been submitted to the department's headquarters in Washington, D.C. for
review. If that's correct, it suggests that U.S. Attorney Tim Morrison
and Assistant U.S. Attorney Doris Pryor did not follow department regulations
requiring the "express authorization of the attorney general" for media
subpoenas -- and it means that neither Attorney General Eric Holder nor
Acting Attorney General Mark Filip were involved. I wouldn't be
surprised to see an internal investigation by the Office of Professional Responsibility; my source would not confirm or deny that.
Whether or not this is an example of the administration flagrantly ignoring proper legal procedure, or someone in charge believing they have a little more power than the Constitution afforded them, will presumably soon be made clear. Yet, we hope for the sake of their readers, that other comparable borderline-activist websites have sufficient protections to stand up to this form of bullying. There is a reason Zero Hedge maintains and operates its infrastructure entirely overseas.